Parcher v. Secretary, Department of Corrections et al

Filing 9

ORDER denying 7 Motion for certificate of appealability. Signed by Judge James S. Moody, Jr on 6/16/2009. (LN)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

JAMES PARCHER, Petitioner, -vsJUDGE HOLDER, et al., Respondents. ________________________________/ ORDER This matter comes before the Court for consideration of Petitioner's Notice of Appeal (Dkt. 6) of the May 18, 2009 decision dismissing his petition for relief under 28 U.S.C. § 2254 (See Dkt. 4). The Court construes the Notice of Appeal as a motion for issuance of a certificate of appealability ("COA") pursuant to Rule 22, Fed. R. App. P.,1 and 28 U.S.C. § 22532 (Dkt. 7). Petitioner did not pay the appellate filing fee and costs or seek leave to proceed on appeal in forma pauperis. Case No. 8:09-CV-883-T-30TGW

"Certificate of Appealability. (1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. §§ 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §§ 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or statewhy a certificate should not issue. . . . If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Rule 22, Fed. R. App. P. "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from -- (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court;. . . (2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c).
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While issuance of a COA does not require a showing that the appeal will succeed, see Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003), under the controlling standard, a petitioner must demonstrate that reasonable jurists would find the Court's assessment of the petitioner's constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). To obtain a COA when the district court has denied a habeas petition on procedural grounds without reaching the merits of the underlying constitutional claim, the petitioner must show (1) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," and (2) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack, 529 U.S. at 484. Petitioner has failed to make this threshold showing. See Slack, 529 U.S. at 485. ACCORDINGLY, the Court ORDERS that Petitioner's Notice of Appeal (Dkt. 6), which the Court has construed as a motion for issuance of a certificate of appealability (Dkt. 7), is DENIED. DONE and ORDERED in Tampa, Florida on June 16, 2009.

SA:sfc Copies furnished to: All Parties/Counsel of Record

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